Department of Transportation v. Callender Construction Co.

May 28, 1999

THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF ILLINOIS, FOR AND IN BEHALF OF THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,v.CALLENDER CONSTRUCTION COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.

In January 1991, plaintiff, the Department of Transportation of the State of Illinois (Department or IDOT), by virtue of its power of eminent domain, filed a complaint for condemnation seeking to condemn property of defendant landowner, Callender Construction Company. In May 1991, defendant filed a motion to dismiss and traverse, alleging lack of necessity and statutory authority for the taking. In November 1993, the circuit Judge denied the motion, holding the Department established a prima facie case of necessity but defendant failed to carry its burden of proof to rebut it. In February 1998, the trial court entered judgment per the stipulation of the parties, which stipulated the amount of compensation to be paid but preserved defendant's right to appeal the ruling on the condemnation. Defendant now appeals. We affirm.

This dispute arises from the condemnation of defendant's property by the Department in connection with the construction of Interstate 72 from Springfield, Illinois, to Quincy, Illinois, also known as the Central Illinois Expressway (Expressway). The defendant's land was to be subject to a restrictive easement. The State of Illinois (State), through legislation passed by the General Assembly, concluded that a highway connecting Springfield and Quincy was necessary for the public good. See Wade v. Kramer, 121 Ill. App. 3d 377, 381, 459 N.E.2d 1025, 1028 (1984) (hereinafter Kramer).

To carry out the mandate of the General Assembly, the State found it necessary to procure federal funding, as the State alone did not have the resources to finance the construction of the Expressway. Thus, the Department was required to comply with the mandates of the Department of Transportation Act (see 49 U.S.C. §303 (1982) (formerly 49 U.S.C. §1653(f) (1976))) to receive federal funds, without which the Expressway could not be constructed.

Specifically, the Department sought to acquire 35 acres of land in the Pike County Conservation Area (Conservation Area), which triggered the application of "section 4(f)," as it is commonly known, of the Department of Transportation Act (49 U.S.C. §303(c) (1982)). The Department determined it was necessary to construct the bridge through the Conservation Area. The Conservation Area land in question was sought for the construction of a bridge across the Illinois River, as it is necessary to cross the Illinois River at some point to construct the Expressway. See Kramer, 121 Ill. App. 3d at 378, 459 N.E.2d at 1028. However, section 4(f)(1) prohibits building federally funded highways through park land such as the Conservation Area unless no feasible or prudent alternative to construction in such areas exists. 49 U.S.C. §303(c)(1) (1982).

Thus, the essential facts of this case begin with a former federal lawsuit involving the Department's compliance with section 4(f)(1). 49 U.S.C. §303(c)(1) (1982). In Wade v. Lewis, 561 F. Supp. 913, 954 (N.D. Ill. 1983) (hereinafter Lewis), a permanent injunction was entered in federal district court preventing the construction of the Expressway. Although the court agreed no feasible or prudent alternative existed to the construction path through the Conservation Area, the Department had failed to show all possible planning had been done to mitigate damage to the Conservation Area as required by section 4(f). 49 U.S.C. §303(c) (1982).

In an attempt to cure these deficiencies and obtain necessary federal funding, the Department engaged experts and commissioned a series of studies that were compiled and presented to natural resource agencies of Illinois to obtain expert advice on the nature and extent of mitigation required to preserve the wildlife habitat of the Conservation Area. At the federal level these reports were reviewed by the United States Fish and Wildlife Service. Upon review of the State's new proposal for mitigation in Wade v. Dole, 631 F. Supp. 1100, 1121 (N.D. Ill. 1986) (hereinafter Dole), the injunction was subsequently removed. In removing the injunction, the federal district court found the mitigation commitments made by the Department in the new section 4(f) plan brought it into compliance with all necessary federal mandates.

At the state level, the Department negotiated an agreement with the Illinois Department of Conservation (Conservation or IDOC), the state agency in control of the Conservation Area, to acquire Conservation Area land for construction of the Expressway. Conservation used the expertise of the Illinois Endangered Species Board (Board) to determine whether to approve the construction of the Expressway through the Conservation Area. Accordingly, the Department negotiated with and submitted several studies to the Board, which in turn submitted a recommendation to Conservation, advising it whether to approve the Expressway project through the Conservation Area.

The Board reviewed a series of studies submitted by the Department concerning the habitat and endangered species present in the construction area to determine what action was necessary to protect the habitat there. Upon the Department's commitment to acquire various interests in private lands using its power of eminent domain to replace the land acquired from the Conservation Area, the Board recommended to Conservation it approve the Expressway project. Based on the Board's recommendation, the Department in May 1984 entered into an intergovernmental agreement with Conservation that called for the acquisition of various interests in surrounding lands and certain protective easements.

Specifically, the agreement provided for the transfer of certain Conservation Area land to the Department and for the replacement of that land acquired from the Conservation Area. Pursuant to this agreement, the Department would acquire fee title to 35 acres of land in the Conservation Area upon which the Expressway would be constructed. In exchange for this land, Conservation would receive fee title to approximately 400 acres of land, plus control of interests in other tracts covering several hundred additional acres. Among the various other interests to be acquired by the Department, a restrictive easement would be taken on defendant's property.

On January 28, 1991, the Department filed its complaint for condemnation against defendant seeking to take an easement on defendant's property. Defendant filed a motion to dismiss and traverse in May 1991, alleging lack of necessity and statutory authority.

At a June 1991 evidentiary hearing, the Department produced three witnesses in support of its complaint. These witnesses testified on the necessity of the Department's actions, including acquiring the Conservation Area land, the ensuing state and federal litigation, and negotiating an agreement with Conservation.

After the evidentiary hearing, the trial court ordered briefs and set the cause for oral argument. In November 1993, the trial court entered an opinion finding the Department had no authority to acquire a "scenic easement" on defendant's property (605 ILCS 5/4-201.5 (West 1992)), but finding the Department had authority to take an interest in defendant's land (605 ILCS 5/4-501 (West 1992)) based on the intergovernmental agreement between the Department and Conservation that deemed the taking necessary by both agencies and, therefore, necessary by the legislature.

Defendant filed a motion to reconsider and vacate and a supplemental motion to reconsider and vacate, which the trial court denied. Defendant now appeals.

This appeal is taken pursuant to Supreme Court Rule 303 from the final judgment of a circuit court. 155 Ill. 2d R. 303. The determination of whether a right of condemnation exists in a particular case is a question of law, and the scope of review is independent of, not deferential to, the decision of the trial court. County of De Kalb v. Smith, 213 Ill. App. 3d 775, 778, 572 N.E.2d 379, 380 (1991).

On appeal, defendant challenges the Department's authority to acquire a restrictive easement on its land to replace the public land acquired from the Conservation Area. The issue presented for review is whether the trial court erred in holding the Department had authority to take a restrictive easement on defendant's property. Defendant alleges three basic points: (1) defendant's property was not necessary to or convenient for the purpose of constructing the public road; (2) the taking of the restrictive easement on defendant's property was without statutory authority; and (3) the amount of property taken was grossly excessive, constituting an abuse of power. When a motion to dismiss and traverse the condemnation complaint is filed challenging the authority to condemn, the burden is on the condemnor to make a prima facie case of necessity. Department of Public Works & Buildings v. Keller, 61 Ill. 2d 320, 324, 335 N.E.2d 443, 447 (1975). After ...

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